The DNI Is Well-Meaning. Really. Except with Those He Claims Want No IC.

The LAT has an article on the acrimony between Mike McConnell and Democrats over FISA. In it, McConnell’s backers insist in his good faith in his negotiations with Democrats.

A spokesman for McConnell said that the director’s dealings with Congress were "always in good faith."

"He values the relationship with Congress," said the spokesman, Michael Birmingham. "He works at it, and he invites and welcomes the oversight they provide."

[snip]

"I think the fact that it was open and argumentative at times was very positive," said Rep. C.A. Dutch Ruppersberger (D-Md.). "I think he improved his relations [with the committee] just by communicating."

[snip]

"I feel he’s an honorable person," Ruppersberger said. "Some of my peers feel he’s compromised. I would say that on the majority side, we were not happy with some of the positions he took."

But the article also lists the many attacks McConnell has made against Democrats. Apparently, in a secret meeting leading up to the House vote, Democrats aired those complaints. And McConnell responded by attacking HPSCI members for being insufficient cheerleaders for the Intelligence Community (I really do hope he attacked both parties equally, since Crazy Pete Hoekstra is one of the loudest critics of the Intelligence Community).

Democrats accused McConnell of making exaggerated claims and of doing the bidding of the Bush administration, according to officials who attended the event. McConnell bristled at the Democrats’ charges, and chastised members of the committee for failing to defend the intelligence community amid a barrage of bad press. [my emphasis]

Incidentally, can someone point out where in the Constitution it requires Congress to defend Executive Branch incompetence in the press? That McConnell would even make such a complaint reveals his rather stunted understanding of the role of Congress.

Given McConnell’s apparent attempt to make nice with Congress, though, I’m utterly mystified by the comments he made in a speech at his alma mater, Furman University in South Carolina, last Friday, about the negotiations with the Senate.

We had a bill go into the Senate. It was debated vigorously. There were some who said we shouldn’t have an Intelligence Community. Some have that point of view. Some say the President of the United States violated the process, spied on Americans, should be impeached and should go to jail. I mean, this is democracy, you can say anything you want to say. That was the argument made.

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Not Even John Yoo Approved of the Illegal Wiretap Program

I do hope that Eric Lichtblau’s book gets enough coverage this week to further stall Jello Jay’s attempts to ram through telecom immunity. The excerpt in the NYT today reveals that when the illegal wiretap program started in 2001, it had no specific legal authorization–not even from the compliant John Yoo!

Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

At the outset of the program in October 2001, John Ashcroft, the attorney general, signed off on the surveillance program at the direction of the White House with little in the way of a formal legal review, the official said. Mr. Ashcroft complained to associates at the time that the White House, in getting his signature for the surveillance program, “just shoved it in front of me and told me to sign it.”

Aides to Mr. Ashcroft were worried, however, that in approving a surveillance program that appeared to test the limits of presidential authority, Mr. Ashcroft was left legally exposed without a formal opinion from the Office of Legal Counsel, which acts as the legal adviser for the entire executive branch.

At that time, the office had already issued a broad, classified opinion declaring the president’s surveillance powers in the abstract in wartime, but it had not weighed in on the legality or the specifics of the N.S.A. operation, officials said.

The nervousness among Justice Department officials led the administration to secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel, declaring that the president’s wartime powers allowed him to order the N.S.A. to intercept international communication of terror suspects without a standard court warrant.

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Listening To You – Mukasey Plays The Emotion Card

The Bush Administration and their never say die FISA/Immunity push are like cockroaches. You can’t kill em, and they never go away. Well, they’re back again. Attorney General Michael Mukasey has graduated from DC water carrier to full fledged traveling snake oil salesman for the Cheney/Bush Administration and their sordid attempts to cover their own criminal wrongdoing via retroactive immunity for telcos.

Last night, Mukasey spoke at the Commonwealth Club in San Francisco and got so emotional in his desperate plea for retroactive immunity and unlimited snooping that he he welled up with tears in the process.

… Mr. Mukasey grimaced, swallowed hard, and seemed to tear up as he reflected on the weaknesses in America’s anti-terrorism strategy prior to the 2001 attacks. "We got three thousand. … We’ve got three thousand people who went to work that day and didn’t come home to show for that," he said, struggling to maintain his composure.

Isn’t that special? Who from this Administration of criminals, fools and incompetents will cry for the Constitution that has been shredded? Who will lament the privacy of ordinary American citizens that has been lost? Who will shed a tear for the souls that have been tortured, beaten, extinguished and/or disappeared? That would be left to us I guess. There is no justice; just us.

Here, from the San Francisco Chronicle, are a few more highlights from Mukasey’s traveling minstrel show:

Attorney General Michael Mukasey defended the Bush administration’s wiretapping program Thursday to a San Francisco audience and suggested the Sept. 11 terrorist attacks could have been prevented if the government had been able to monitor an overseas phone call to the United States.
The government "shouldn’t need a warrant when somebody picks up a phone in Iraq and calls the United States," Mukasey said in a question-and-answer session after a speech to the Commonwealth Club

Mukasey also defended President Bush’s insistence on retroactive immunity for telecommunications companies that have cooperated with the administration’s surveillance program, in which phone calls and e-mails between U.S. citizens and foreign terrorist suspects were intercepted without warrants.

"They have cooperated," Mukasey said of the companies, without naming them. "It just ain’t fair to ask somebody to cooperate with the government" and face a lawsuit for substantial damages, he said.
If Congress denies the companies retroactive immunity, he said, the firms will withdraw their voluntary participation and the government will have to Read more

Bushco Rolled Out A Parade Of Liars To Squelch Lichtblau, Risen & NYT

A fairly significant article just posted at Slate by Eric Lichtblau on the jaded history of the publication, and withholding of publication for well over a year, of his and Jim Risen’s seminal story on the criminal warrantless wiretapping by the Bush Administration. Some of it we knew, some of it we guessed and some of it is first impression. As a whole however, it is stunning to digest.

For 13 long months, we’d held off on publicizing one of the Bush administration’s biggest secrets. Finally, one afternoon in December 2005, as my editors and I waited anxiously in an elegantly appointed sitting room at the White House, we were again about to let President Bush’s top aides plead their case: why our newspaper shouldn’t let the public know that the president had authorized the National Security Agency, in apparent contravention of federal wiretapping law, to eavesdrop on Americans without court warrants.

As the door to the conference room opened, however, a slew of other White House VIPs strolled out to greet us, with Secretary of State Condoleezza Rice near the head of the receiving line and White House Counsel Harriet Miers at the back.

The risk to national security was incalculable, the White House VIPs said, their voices stern, their faces drawn. "The enemy," one official warned, "is inside the gates." The clichés did their work; the message was unmistakable: If the New York Times went ahead and published this story, we would share the blame for the next terrorist attack.

That shared skepticism would prove essential in the Times’ decision to run the story about Bush’s NSA wiretapping program. On that December afternoon in the White House, the gathered officials attacked on several fronts. There was never any serious legal debate within the administration about the legality of the program, Bush’s advisers insisted. The Justice Department had always signed off on its legality, as required by the president. The few lawmakers who were briefed on the program never voiced any concerns. From the beginning, there were tight controls in place to guard against abuse. The program would be rendered so ineffective if disclosed that it would have to be shut down immediately.

All these assertions, as my partner Jim Risen and I would learn in our reporting, turned out to be largely untrue.

Go read the entire article, it and you deserve nothing less. There was one great little aside that Read more

Nacchio Gets a New Trial

In news that may have repercussions for Bush’s attempt to hide all details of his warrantless wiretapping program, Joseph Nacchio just won a new trial (h/t scribe). Mind you, the reason his trial was overturned does not relate directly to his claim that the Administration retaliated against him because he refused to illegally wiretap Americans. Rather, the Appeals Court overturned his case because he was not allowed to make a case for his expert witness.

A federal appeals court ordered a new trial Monday for former Qwest CEO Joe Nacchio, saying the trial judge wrongly excluded expert testimony important to Nacchio’s defense in his insider trading case.

[snip]

Attorneys for Nacchio told the 10th U.S. Circuit Court of Appeals in December the case against him didn’t meet standards set by previous court rulings.

Nacchio’s attorney, Maureen Mahoney, also told the court that U.S. District Court Judge Edward Nottingham wrongly prevented a defense witness from testifying and that Nottingham’s instructions to the jury were inadequate.

[snip]

At the appeals hearing, the judges repeatedly asked Oestreicher why Nottingham denied Daniel Fischel from testifying in Nacchio’s defense. Prosecutors say the defense didn’t establish the reliability of Fischel’s opinions or disclose how he arrived at them.

Nacchio’s attorneys say Fischel, an expert on corporate law and markets, was a core part of his defense and could have explained to jurors what must be publicly disclosed and that Nacchio’s stock sales were to diversify his portfolio. Mahoney said a reasonable jury hearing testimony from Fischel would have acquitted Nacchio.

So the Appeals Court has not specifically said Nacchio should be able to tell us about being strong-armed to wiretap Americans (that’s not why they accepted his appeal). But given another trial–not to mention the House’s recent confirmation that different carriers responded to government requests differently (that is, AT&Treason happily wiretapped us, while Qwest resisted)–Nacchio might have the opportunity to explain why he thinks he was retaliated against because he believes in the Fourth Amendment.

More Blue Dogs Come Home

In addition to Leonard Boswell, the following Representatives who originally signed the Blue Dog letter to Nancy Pelosi in support of the SSCI bill voted for the House bill today:

  • Rep. Leonard L. Boswell, D-Iowa — Phone: (202) 225-3806, Fax: (202) 225-5608
  • Rep. Marion Berry, D-Ark. — Phone: (202) 225-4076, Fax: (202) 225-5602
  • Rep. Mike Ross, D-Ark. — Phone: (202) 225-3772, Fax: (202) 225-1314
  • Rep. Earl Pomeroy, D-N.D. — Phone: (202) 225-2611, Fax: (202) 226-0893
  • Rep. Melissa Bean, D-Ill. — Phone: (202) 225-3711, Fax: (202) 225-7830
  • Rep. John Barrow, D-Ga. — Phone: (202) 225-2823, Fax: (202) 225-3377
  • Rep. Allen Boyd, D-Fla. — Phone: (202) 225-5235, Fax: (202) 225-5615
  • Rep. Joe Baca, D-Calif. — Phone: (202) 225-6161, Fax: (202) 225-8671
  • Rep. John Tanner, D-Tenn. — Phone: (202) 225-4714, Fax: (202) 225-1765
  • Rep. Jim Matheson, D-Utah — Phone: (202) 225-3011, Fax: (202) 225-5638
  • Rep. Brad Ellsworth, D-Ind. — Phone: (202) 225-4636, Fax: (202) 225-3284
  • Rep. Charlie Melancon, D-La. — Phone: (202) 225-4031, Fax: (202) 226-3944
  • Rep. Dennis Moore, D-Kan. — Phone: (202) 225-2865, Fax: (202) 225-2807
  • Rep. Zack Space, D-Ohio — Phone: (202) 225-6265, Fax: (202) 225-3394

Altogether, 15 of those who originally signed the letter voted with their party today, plus Lincoln Davis, who voted present. They picked up Lampson, who voted against the bill. But in all, that’s a pretty profound turn.

Notably, Barrow, Boswell, Ellsworth, and Space were targeted by Blue America. I guess that leaves just Carney and Shuler as candidates to have an ad run against them for opposing civil liberties.

If any of these guys who changed their vote are your Representative, please call them and thank them for supporting their party on this important vote.

Update: Stole the list with phone numbers from McJoan. Also, as McJoan suggests, it’s also probably a good idea to thank the Freshmen for refusing to be cowed by the Republican fearmongering. Read more

The Blue Dogs (Some of Them, at Least) Come Home

Update: We win, 213-197-1, with the 10 Dem no votes a mix of Blue Dogs and Progressives. Good work, Congress!! 

Some time ago, 21 Blue Dog Democrats wrote a letter in support of the Senate bill on FISA. The Republicans (including Doc Hastings in today’s debate) have pointed to that letter in support of their argument for the Senate bill.

But the Blue Dogs–at least some of them–are starting to come home (perhaps because of the pressure that Blue America is preparing to put on them for voting against civil liberties). Today, Leonard Boswell spoke in favor of the vastly better House bill on FISA, calling for the others that signed the letter to support the Democratic bill as well.

So yes, I like 20 others, signed a letter of concern. By the way, it was not a Blue Dog letter, a Blue Dog position but individuals, some of whom were Blue Dogs. Over the course of past weeks, a credit to Chairman Reyes and Chairman Conyers and our super staff, an acceptable solution has been found. It makes FISA – supports FISA and gives protection to those who assist within the provisions of the law. For example, those who feel their civil rights have been violated can seek justice and telecoms who feel they have complied with the law, a judge can review the classified evidence and decide. This means to me that the Constitution and civil rights are protected and telecoms who are asked under pressure to assist in an emergency can know that classified evidence will be seen by a judge… The bill provides telecom companies a way to present their defense in secure proceedings in a district court without the administration using state secrets to block the defense. A company simply doing its duty following the law, this bill ensures they they will not be punished and I urge everyone who signed the letter with me to support this resolution.

Welcome home Congressman Boswell–I hope you’re back to stay.

FISA: FBI Overrides Constitutional Objections

Democrats just defeated (with 217 votes) an effort by Republicans to consider the Senate FISA bill before the House considers the House bill today.

While we’re watching lots of bloviating on FISA in the House, I thought I’d call attention to something Mary found yesterday.

The FBI twice disregarded a secret court’s constitutional objections and obtained private records for national-security probes, a U.S. inspector reported on Thursday.

The Justice Department’s Inspector General made the disclosure in reviews of the FBI’s powers to obtain information such as phone records or credit-card data in terrorism probes or other security investigations.

[snip]

The report took particular note of two occasions in which a secret court that oversees electronic surveillance rejected FBI requests to obtain records.

The court was concerned that doing so could interfere with rights protected by the First Amendment of the Constitution which guarantees freedom of speech, religion and association and the right to petition the government.

After the rejections, the FBI used separate authority to get the information without the court’s approval, relying on so-called National Security Letters — even though that authority also had First Amendment guidelines.

Unfortunately, this is a detail I’ve only seen highlighted in Reuters’ coverage of the IG report on PATRIOT Act provisions. It’s an example that really proves the necessity of the additional protections included in the House bill–without FISC reviewing what DOJ is doing, we’re going to see DOJ override Constitutional concerns more and more often.

Update: nolo has the passage from the OIG report on this here.

Conyers introducing the bill: [PAA] transferred power of independent review from courts to AG.

The Administration tells us they have nothing to hide. If that’s true, they should have no problem with the enactment of this Blue Ribbon Commission. We learned yesterday that FBI continuing to misuse PATRIOT Act provisions. We learned four days ago NSA using massive net.

Lamar Smith starts off by lying through his teeth, again claiming that wiretapping on the kidnappers in Iraq was held up because of FISA–rather than because Paul Clement had left work early.

Feeney makes up stuff about the bill.

Jim Marshall engages in colloquy with Conyers and Reyes clarifying how the FISA suits would go forward.

Nadler we have heard false and misleading statements from our colleagues. By solving the State Secrets problem, if they need it and if they obeyed the law.

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House to Go Into Secret Session

At the request of the Republican leadership (who want to say something to the entire House that can’t be said publicly), the House is going to go into a secret session to debate FISA.

Here’s what John Conyers had to say about the secret session:

The more my colleagues know, the less they believe this Administration’s rhetoric. As someone who has chaired classified hearings and reviewed classified materials on this subject, I believe the more information Members receive about this Administration’s actions in the area of warrantless surveillance, the more likely they are to reject the Administration’s scare tactics and threats. My colleagues who joined me in the hearings and reviewed the Administration’s documents have walked away with an inescapable conclusion: the Administration has not made the case for unprecedented spying powers and blanket retroactive immunity for phone companies.

Whether this is a worthwhile exercise or mere grandstanding depends on whether Republicans have groundbreaking new information that would affect the legislative process. There must be a very high bar to urge the House into a secret session for the first time in 25 years. I eagerly await their presentation to see if it clears this threshold. As someone who has seen and heard an enormous amount of information already, I have my doubts.

I’m frankly optimistic about this development. I think this gives the Democratic members of HJC and HPSCI an opportunity to explain to their colleagues what they saw in the justifications for the wiretap program and what they heard from the telecom executives who gave secret briefings in the last several weeks. For the immediate debate, the issue is winning over the Blue Dogs who–at least currently–appear to be channeling their Democratic past. And it seems like this argument is fairly easy to make.

At the very least, we know the telecoms continued to wiretap in the days after March 10, 2004, when White House Counsel Alberto Gonzales authorized the program rather than Acting AG Jim Comey. We know the telecoms didn’t follow the clear guidelines about when they can accept the Administration’s assurances that a program is legal.

That seems like an important part of the debate.

HJC Calls Bull on SSCI’s Conclusions

The Democrats on HJC have been doing their homework while the Republicans have been fear-mongering. They’ve read the documents related to the illegal wiretapping program, held secret hearings with the telecom companies, and called bull on several of the conclusions formed by SSCI. Not surprisingly, this letter justifies the FISA alternative which will come up for a vote later this afternoon.

The letter reveals the timing of the hearings with the telecom companies–but does not reveal whether the Republicans deigned to attend.

In recent weeks, Judiciary Committee members have received classified briefings from intelligence and Justice Department officials on the Administration’s warrantless surveillance program; we have been provided access to the same classified documents on the program that were provided months ago to the Senate Intelligence and Judiciary Committees (and, more recently, to the House Permanent Select Committee on Intelligence); and the Committee has conducted lengthy and extensive classified hearings on February 28 and March 5 to hear testimony from telecom and Administration officials. A key focus of that effort was the issue of retroactive immunity for phone companies that participated in the warrantless surveillance program. [my emphasis]

The hearings appear to have taken place during that period when the Republicans had taken their toys and gone home–so it’s likely, by refusing to let their staffers participate, the Republicans avoided learning the details that the Democrats learned [Update: I’ve been informed the Republicans attended the hearings]. And note–they still seem to be focused on phone companies, not the email carriers who are the center of the new programs.

The letter also confirms what we’ve already known–not all carriers acted the same in response to Administration requests.

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